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Medicolegal Priorities for a Neurosurgeon/Neurologist in the COVID Era
Correspondence Address: Source of Support: None, Conflict of Interest: None DOI: 10.4103/0028-3886.349678
Keywords: COVID-19, ethics, medical negligence, medicolegalKey Message: Neurologists and neurosurgeons need to be wary about the medicolegal and ethical rights of patients and research subjects during the urgencies of medical care during the COVID-19 pandemic. It is essential to uphold best standards of ethically and medicolegally appropriate practice, despite leniencies and urgencies imposed by the pandemic.
In times of war, the laws fall silent Cicero (Roman statesman and academician) Overwhelming urgencies created by the COVID-19 pandemic have brought forth unique medicolegal vulnerabilities in the practice of medicine.[1] Neurosurgeons and neurologists, though not often in frontline COVID care, are nevertheless susceptible to these risks and liabilities.[2],[3] While providing emergency or elective care to non-COVID illnesses and also to COVID patients, several such medicolegally vulnerable situations are encountered. It is assumed that the law would be lenient towards a doctor during a pandemic. Nevertheless, it is impending that medical practitioners strive to maintain the highest medicolegal and ethical standards of care while rising above the call of duty. As on September 20, 2020, 31,223,650 people, the world over, have been infected by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and 9,64,762 have succumbed to the illness. The pandemic has spread to 215 countries and continues to flare unabatedly.[4] Even non-frontline specialists like neurologists and neurosurgeons are actively involved in indirect COVID care, which involves providing and prioritizing care for other illnesses and COVID related clinical research. Neurological manifestations of COVID-19, like stroke, seizures, encephalitis, and thromboembolic phenomena may further beckon the care of neurologists and neurosurgeons.[2],[3] Both hematogenous and direct transneuronal transmission with transgression across the blood brain barrier (BBB) have been proposed to be the mechanism of central nervous system (CNS) involvement by SARS-CoV-2. The systemic manifestations of COVID-19 are mediated by cytokine storms, thromboembolic phenomena and auto-immune responses making the CNS particularly vulnerable.[2],[3] While executing clinical responsibilities in a pandemic scenario, several exigent circumstances may be created for the clinical practitioner. They are thereby at risk for medicolegal, moral, and ethical misjudgments and fallacious actions that could have future liabilities.[5],[6],[7],[8] Hence, we aim to study these vulnerable medicolegal moments in clinical and research practices during the COVID-19 times from our own practice and contemporary literature on COVID practices, medicolegal sciences and pandemic healthcare directives.
Medical care provided in good faith during exigent circumstances should ideally be given special regard and appreciation. Nevertheless, these actions of noble intent are also governed by the principles of justice, equality, beneficence, utility, respect, liberty, solidarity, and reciprocity.[5],[6] The World Medical Association's Declaration of Helsinki (1964) advocates respect, beneficence, and justice as the cornerstones of medical ethics.[5],[6],[7],[8] Therefore, these well intended acts of medical care in a pandemic are not above medicolegal and ethical rights, which maybe often ignored citing the urgencies of a pandemic. Probable consequences of these actions may be unintentional, delayed, and unpredictable [Table 1]. Outlined below are some pandemic-specific, yet exceptional, medicolegally vulnerable clinical situations,
1. Clinical care constraints Hospitals could serve as centers of cure or disease amplification in a pandemic.[1],[5] Enhanced infection control measures during a pandemic could constrain ergonomic efficiency and clinical work flow. Examples
2. Patient confidentiality breaches During a public health crisis, health authorities (besides the treating team of doctors) are permitted access to patient records and treatment details, as mandated by pandemic laws. This may at times create a breach of patient medical record confidentiality, for the greater good of pandemic control. 3. Resource crunches Limitations in availability of protective gear, test kits and health care personnel are common during pandemics. This further strains the quality of medical care and also challenges practices for judicious use of resources.[1],[5],[7] 4. Working outside fields of specialization Severe shortages of general medical doctors and pulmonary specialists in COVID-19, times, may call for other specialists to provide these services. Neurosurgeons and neurologists in highly burdened clinical systems, may be given the added responsibility of manning intensive care units. This care, provided out of one's area of expertise with noble intent in a crisis, should not ideally attract the same medicolegal liabilities, as that for an expert.[5] 5. Enhanced positions for trainees and resident doctors In a pandemic, medical students and resident doctors may often be needed for providing specialist clinical services, before completing their qualifying examinations.[5] Whether they should be as liable as more qualified experts in such an exigent situation, is a matter of speculation and ethical debate. 6. Telemedicine clinical care and its limitations The lack of optimum bedside clinical evaluation in telemedicine consultations could lead to misdiagnosis and medicolegal liabilities. Clinical data confidentiality breaches are also additional concerns.[5],[6] 7. Pandemic times clinical research Research subjects during a pandemic could be 'healthy' individuals, the infected patient, health care worker or those having COVID related/non-COVID ailments. Pandemic research should be focused on scientific validity, social value, risk-benefit ratios, fair and voluntary participation, equal moral respect for participants and cleared by independent fair reviews.[4],[7] Urgent fast track reviews may dilute stringent standards and scrutinies. Ideal standards for research consent may not often be met and many research subjects may be recruited based on passive implied consent. Thereby, careful scrutiny by ethical regulatory authorities may be needed despite the pandemic urgencies, both at the institutional and national levels. 8. Cost of medical care Additional personal protective equipment, tests, and measures to protect the patient/health care worker from cross-infection, elevate the cost of care.[6] In developing nations the brunt of these costs are often borne by the patients and their families, rather than insurance systems or the state.
Informed consent for surgical interventions is based on shared autonomous decision making, with full information about the procedure, risks, and natural course of the disease. An informed refusal and future revocal of refusal also exist in the traditional consent process.[9],[10],[11] However, in pandemic times, special situations like the risk of cross-infection, additional protocols, tests, enhanced costs, and constrained outcomes, need to find a mention in the informed consent process [Table 2].
Laws to control pandemics could at times cross paths with medical malpractice laws, ethical and moral proprieties.[6],[8],[12],[13] The Epidemic Diseases Act of 1897 came in force due to the mass spread of the bubonic plague outbreak in Bombay. The Disaster Management Act, 2005 provides the state powers to implement measures to combat disasters like the current pandemic.[13] The Epidemic act is focused on enforcement of public health measures for epidemic control. Vis-à-vis, the standards of clinical care, a doctor's duties and a patient's rights are the cornerstones for medical negligence laws. For establishing medical negligence, the pre-requisites are,[12]
In non-pandemic times and under ideal circumstances, a medical practitioner could attract any of the following liabilities in a deemed action of medical negligence,
But, in a pandemic several urgencies and limitations restrict a doctor's efficiency and judgement. Thereby, medical negligence laws and ethical rights have to be viewed in the right context and penalties modified accordingly. Section 188 of the Indian Penal Code (IPC) imposes punishment for disobeying an order promulgated by a public servant. This is often used to enforce the law in violations of the epidemic act. Section 269,270 of the IPC prescribes punishment for negligent actions which may spread the infection in the event of a disease. A doctor too could attract these liabilities unknowingly, during the provision of care in a pandemic. The treatment of other non COVID illnesses often take a backseat during the pandemic infection and such a scenario could create medicolegal liabilities for a neurologist/neurosurgeon (Example-A rescheduled semi-emergency brain tumor surgery during the pandemic, causing a neurological deterioration due to delay in care). Acts of alleged medical negligence could incite liability under Indian Penal Code section 304 A (rash or negligent act causing death not amounting to culpable homicide),336,337,338 (rash or negligent act endangering life, safety of others) causing grievous hurt. Besides this, contract violation (informed consent is a contract) under the consumer protection act or civil rights and duties violations, could attract penalties in alleged acts of medical negligence. In the overwhelming pandemic urgencies and constrained circumstances, these laws of medical negligence need a realignment and rethought. They need to be interpreted and applied as fairly and humanely as possible, protecting both the 'care-giver' doctor's and the patient's rights.
Clinicians like neurologists and neurosurgeons, stretch beyond the call of duty during a pandemic. But this may not be sufficient reason to lower the medicolegal bar of standards in clinical care and research.[6],[9] In such medicolegally vulnerable moments, the defensive plea of a doctor could be based on the following,
Pandemic urgencies, resources crunches, health risks and extreme hardships may mitigate the liabilities of a doctor charged with medical negligence in such a COVID-19 pandemic setting. Care that is rendered to individuals to whom the doctor does not owe a duty is considered a 'Good Samaritan' service. This could be applicable to service rendered outside one's specialization or after retirement from active service. Exigent circumstances or other health frailties may restrict a health care worker from offering optimum services in a pandemic. Hence, legal and administrative penalties must be tempered and balanced as per the pandemic exigencies.
In the heat of the pandemic control, medicolegal, ethical, and moral rights of patients may often get ignored. Though not often in frontline COVID care, neurologists and neurosurgeons may be part of several vulnerable medicolegally liable moments during these times. An awareness of basic principles of pandemic laws and medicolegal rights, in the light of the exigent circumstances would ensure highest standards of care from an ethical and medicolegal viewpoint. Realignment of the informed consent for surgery during pandemic times is also essential. When disaster management and epidemic laws cross paths with patients' rights and medicolegal proprieties, there cannot be any ethical or medicolegal compromise, despite the vulnerabilities. Financial support and sponsorship Nil. Conflicts of interest There are no conflicts of interest.
[Table 1], [Table 2]
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